Chapter V
FREE BLACKS
Not all blacks in colonial Maryland were slaves. Although free blacks and mulattoes were not numerous, they did exist and they occupied a position in society above that of their servile brothers and sisters. An assessment of the legal status of blacks would be incomplete without regard for the treatment of free blacks. For the most part, they are less visible than slaves in the surviving record due certainly to their small number and possibly in part to a reluctance they may have had to draw attention to themselves by going to court except when they had to. After all, the line between slave and free was a color line and free blacks were on the wrong side of the line.
As we have seen, the statutes of colonial Maryland established an absolute equation between blackness and slavery. The manner in which the courts handled freedom petitions indicates that proof to the contrary fell upon those who were presumed slaves. While there was little statutory proscription of the rights and liberties of free blacks[ 1 ], certainly the harsh laws restricting the rights and liberties of slaves posed a foreboding example of how whites regarded all blacks. Certainly free blacks had no statutory guarantees for their rights and liberties. They therefore treaded precariously in a legal limbo. In the same way that slaves with claims to freedom were still presumed slaves until they could prove otherwise, free blacks could be required to prove that they were free. In 1688, Sarah Driggers "and the rest, all Negroes" (four females and an unspecified number of males) asked the Somerset County Court to cease taxing them at the rate for slaves since they were all free. The court ruled that the plaintiffs must first secure certificates from their home parishes attesting to their free condition and to their Christianity before it would move on the matter.[ 2 ]
This incident shows not only the presumption that blackness meant slavery and that proof to the contrary resided with the black, it also shows that as late as 1688, and despite what the statutes said, Christianity was still a determining factor in deciding whether a person was slave or free.
We have see how two of Maryland's early free blacks, Robert Butchery and Grinedge the Negro, ran afoul of the law in matters regarding their sex lives. The authorities fined Butchery the same way they fined white offenders. Grinedge won acquittal altogether. We have also seen how another early free black, Thomas Hagleton, successfully used the Provincial Court to sue his former master for freedom dues. While these three cases offer precious little to go on, they do help formulate the central question pertinent to the study of free blacks and the courts: were blacks who had somehow avoided the taint of slavery given the same judicial deference due to a free Englishman? Did the color of their skin, not their condition of servitude, affect their treatment? And, since we are dealing with a sizeable stretch of time, are there any changes in treatment evident over the entire period?
Three families of free blacks who used, or were called before, the courts of colonial Maryland come to light in the judicial records: the Johnsons, in the third quarter of the seventeenth century; the Savoys, from the beginning to possibly past the middle of the eighteenth century; and the Quandos, who first appear in 1702 and who still appear on the eve of the Revolution, and whose descendents, now named Quander, are well aware of their family heritage. While the records of these three families' legal problems are not nearly as full and complete as we might like them to be, they do offer a good comparative element because of the time periods they cover.
The Johnsons migrated from the Eastern Shore of Virginia to the Eastern Shore of Maryland in the early or mid-1660's, evidently as retainers to two whites, Randall Revel and Ann Toft.[ 3 ] The progenitors of the Johnson clan were Anthony and Mary, blacks who had come to Virginia very early, perhaps with the "twenty Negars" John Rolfe observed in 1619. By the mid-1620's, they were free residents of Accomack (later Northampton) County on Virginia's Eastern Shore. By the middle of the century, they owned 250 acres of land and at least one slave, John Castor, who lost a freedom suit against Anthony in 1640. They had two grown sons, John and Richard, whose names appear on land transactions at the time. In 1652, the county court excused the Johnsons from their annual taxes because a fire had destroyed much of their property.[ 4 ]
We know they were in Maryland by 1665 because in that year, Revel and Toft claimed headrights for 2,350 acres of land in Somerset County for importing a number of people. Among those imported were Anthony and Mary Johnson, John Cassaugh (most likely John Castor, the Johnsons' slave), and John Johnson and his wife, Susan.[ 5 ] Once in Maryland, the Johnsons quickly reassumed the community stature they had held in Virginia. In 1666, Anthony leased a 300 acre lot, "Tonies Vineyard," from Steven Horsey, a white, for two hundred years at an annual rent of one peppercorn and responsibility for paying Proprietary land taxes on the property. Anthony apparently died shortly thereafter. Horsey renegotiated the lease with Mary for a ninety-nine year period with an annual payment of one ear of Indian corn. The second lease provided that, after Mary's death, the land would be assumed by her two sons, John and Richard.[ 6 ]
After Anthony's death, John emerged as head of the family. Under his management, the Johnson fortunes continued to grow. In 1670, he and his son, John, recorded their livestock brand in the county records,[ 7 ] and, in 1677, the younger John bought a forty-four acre lot which he named "Angola,"[ 8 ] perhaps a key to the family's origin. Even the family's old slave, John Castor, was permitted to possess property. In 1672, "John Cazara Negro servant to Mary Johnson Negro" recorded his livestock brand "With the Said Marys Consent."[ 9 ]
In 1672, Mary took measures to dispose of her estate before her death. She awarded full power of attorney to her son, John, and authorized him to sue for some debts she had outstanding in Virginia. John Castor's name appeared as witness to the document. Mary also filed a brief will in which she devised three cows with calves to three of her grandchildren, Anthony (the elder John's second son), Francis, and Richard (sons of Richard). Both documents were signed, sealed, and recorded as required by law.[ 10 ]
Of all the Johnsons, the elder John's life is the best recorded. Proprietor of considerable land, he seems to have attained the status of any freeman possessed of a relatively substantial estate. In one instance, he was identified with the term "plante" after his name and race.[ 11 ] Like many of his fellow planters, he not only had to recover debts outstanding, but was himself plagued by a creditor. On a number of occasions, his original importer, Randall Revel, brought suit against Johnson to recover minor debts. In none of the cases was the amount of money involved more than seven hundred pounds of tobacco. Johnson was just one of many lesser planters Revel sued. What is notable about the Revel-Johnson cases is how utterly usual they were for the time.[ 12 ]
Like other members of the community, Johnson was occasionally called upon to testify in court concerning civil suits. In 1670, his creditor, Revel, brought suit against Richard Ackworth over a land boundary dispute. Ackworth had cut timber on land which Revel claimed was his as part of the headrights given to him and Ann Toft for importing, among others, the Johnsons. Both Revel and Ackworth called numerous witnesses to the stand. One of Ackworth's witnesses was John Johnson, Negro. The Justices hesitated to admit Johnson's testimony, apparently unsure if they should let a black testify against a white.[ 13 ] Before they proceeded, they asked Johnson if he was baptized, to which he answered he was. Thereupon, they asked him if he "did rightly understand the taking of an Oath," to which Johnson "gave them A satisfactory answer." The justices were content and allowed Johnson's testimony. Ackworth, for whom Johnson gave evidence, won the case.[ 14 ] Thereafter, there was no question about Johnson's fitness to be a court witness. In 1676, he testified in a case over livestock ownership. Again, the party for whom he testified won the case. Not long after that, Johnson witnessed two deeds sworn out by a white man.[ 15 ]
John Johnson got into trounle on minor criminal charges at least twice, once in Virginia and again in Maryland. Just before his family migrated to Maryland, the Accomack County Justices jailed him on a charge of fathering a bastard. His wife, Susan, appealed to the court to release him. The court agreed to do so provided he posted security for his good behavior and for his future support of the child. There is no record of other punishment.[ 16 ] Once in Maryland, Johnson and two white men were charged with stealing corn from an Indian. They confessed and the Somerset Justices ordered them to repay the value of the corn.[ 17 ] In neither case is there evidence that Johnson's black skin in any way affected the treatment he received.
Very little information has survived regarding John Johnson's younger brother Richard. We do know, however, that Richard's son, Francis, indentured himself to a cooper for three years in November, 1673. The indenture specified that Francis's master, George Phebus, was to teach him cooperage, so this was not a simple indenture of servitude but an indenture of apprenticeship and in March of 1674, Phebus complained to the Somerset Justices that his "servant" had yet to submit to the indenture. The court ordered Francis to begin work immediately.[ 18 ]
The ultimate fate of the Johnsons is a mystery. From the time they came to Maryland through the mid-1670's, the Somerset County records are replete with referenced to them. Then, following an eight year hiatus (1678-1686) during which records for Somerset are fragmentary, references to them cease. A Provincial land record of 1706 contains a brief notation regarding the younger John's tract "Angola." "No heirs as I understand," remarked an official. "Escheat to his Lordship."[ 19 ]
It is impossible to say for certain what happened to the Johnsons. In 1702, a Somerset County mulatto named William Johnson indentured himself to a carpenter for a four year term.[ 20 ] No relationship between him and the other Johnsons can be demonstrated. If there was such a relationship, then his description as a mulatto may indicate that the Johnsons were amalgamating with the white population. In 1710, a Cecil County black named John Johnson pleaded no contest in a suit for back payment of taxes.[ 21 ] Cecil County is at the head of the Chesapeake Bay and an offspring of the Somerset Johnsons might well have migrated there by 1710. In 1722, a Black John Johnson of Kent County (Eastern Shore), planter, and Robert Street, plasterer (and presumably white), posted a total of £20 sterling for the appearances of two other presumably white people, William and Margaret Ketch, to testify in a civil suit.[ 22 ] Shortly thereafter, Black (also called Red) John Johnson, probably the same man just mentioned, and Maurice Carley each posted L5 sterling for Johnson's appearance to answer for violent threats he supposedly uttered against a white man known as John Johnson, gentleman. When the black John Johnson appeared, no one offered a case against him and the court released him from bond.[ 23 ]
The post-1700 Johnsons may or may not have been related to the pre-1678 Johnsons. References to any Eastern Shore black Johnsons do, however, cease in 1723. Whether or not the earlier and later Johnsons were related, some significant distinctions can be drawn between the nature of their appearances in court records. The earlier Johnsons were not much different from their fellow planters. They held land, paid taxes, and had access to the legal system. They could sign legal documents of their own, be witnesses to the documents of others, and could transact freeely with whites. They not only borrowed credit, but extended it as well. When they were subject to legal judgments, they were treated with no apparent discrimination. There is no way to tell whether or not they voted, served in the militia, or performed jury duty.[ 24 ] In short, insofar as the record shows, the early Johnsons functioned the same as any planting family of moderate means.
The later Johnsons, by contrast, only appeared in court when external factors required it of them. They do not seem to have gone to court on their own initiative to seek some beneficial service or favorable judgment that a court of law could provide or dispense. No statute prohibited them from doing so. Perhaps they occupied a societal niche below the earlier Johnsons, one shared with many whites to be sure, but a niche in which the majesty of the law was more often a burden than a benefit.
Another family of free blacks who appeared in the courts of colonial Maryland were the Quandos, who lived on the Western Shore in Prince George's and Charles Counties. The first record of them is 1702 when Henry Quando (who is not racially identified) asked the Charles County Justices "about his Wife being a free Negroe Wheather Shee ought to pay Taxes."[ 25 ] The clerk reported the justices' decision ambiguously, "It is the Opinnion of the Court that She Ought &c ."[ 26 ] She ought what? Continue to be taxed? Be struck from the tax lists? The record is not clear. Although Henry is not specifically identified as black, his wife's race as well as the unusual last name of Quando are compelling circumstantial evidence that he was black, or at least mulatto. It is important to establish that presumption here because there is only one other specific indication that the Quandos were black.
We have already examined Margaret Quando's freedom petition on behald of her two daughters. In that case, the young Quandos have been deceived into seven year indentures by an unscrupulous master who employed a legal ruse to entrap them. In 1721, Margaret Quando secured the endorsement of two Provincial Justices to take her case to the Charles County Court. The Charles Justices released the young girls from their fradulent indentures.[ 27 ]
Another Quando, Maria, was presented to the Prince George's justices three times for bastardy in th 1720's. She confessed the matter each time and, unable to pay fines, was punished with fifteen lashes the first time, six the second, and thirty-nine the third.[ 28 ] It is not unusual to find servant women, who were not permitted to marry, being punished for serial illegitimate children. This suggests a pattern of common law marriage among the serving classes and may explain Maria Quando's situation.
The name Henry Quando reappears in Prince George's County records of the 1730's and 40's. It is not possible to determine if he was the same Henry Quanto who brought the matter of his wife's taxation before the Charles Justices in 1702. But the later Henry Quando did make greater use of the courts. In 1731, John Maddox, the assignee of Richard Cross, filed a suit against Quando before the county justices. The record is vague on the details of the suit, but we do know that Quando was represented by Daniel Dulany. Dulany got Quando and imparl with one Alexander Frazer posting bond to recompense Quando should Maddox fail to prosecute. When the matter next came up, Maddox indeed failed to prosecute. The court released Quando and awarded him 360 pounds of tobacco. Quando had to prevail upon the court twice before he got his dues from Frazer, but he ultimately succeeded.[ 29 ]
In the summer of 1741, Quando was in the Charles County Court represented by Henry Darnall. This time he was suing Samuel and Margarett Clements for 852 pounds of tobacco. Quando claimed that Margarett owned him the money for some goods and services he rendered prior to her marriage to Samuel. After several continuances, a jury awarded Quando the full amount he sought plus an additional 2129 pounds damages. Later that summer, Quando sued Samuel again for 500 pounds tobacco compensation for a small house Quando had built for him. Samuel did not contest and the court ordered him to pay the money and 1482 pounds of tobacco damages.[ 30 ] In none of the above proceedings is Quando identified racially.
Quando died shortly thereafter. His estate was worth a modest £19.17.8 current money. Of that amount, £8.11.8 was for 1030 pounds of tobacco he had on hand when he died. Attesting to the estate's value was Henry Adams Quando, "nearest of kindred." As before, there is no indication of race.[ 31 ]
We do not see any further mention of the Quandos for over thirty years when, in 1776, Humull Godfrey, "a Negro," and two others of unstated race were bonded to inventory the estate of Margaret Godfrey, also known as Margaret Quando.[ 32 ] It is possible that this Margaret was the same Margaret Quando who sued for her daughters' freedom in 1721. No inventory has survived, but the bond record is important because its reference to Humull Godfrey as black is the only other evidence indicating that the Quandos were black. Godfrey may have been Margaret's husband. Margaret may have previously been married to Henry Quando. Or there may have been two or more generations of Henry and Margaret Quandos.
How do the Quandos experiences with the courts compare to the experiences of the Johnsons of the seventeenth century? To begin with, the Quandos do not appear to have owned land as did the Johnsons. They could not by law testify in cases involving whites, although we have seen the courts let them testify on their own behalf in civil suits. The Johnsons testified on behalf of others. While the Johnsons owned a slave, the Quandos seem to have made their livings serving others, albeit for wages. Like the Johnsons, they were subject to taxes, though probably only poll taxes since they owned no land. Like the Johnsons, they were able to use the courts to recover debts. In contrast to the Johnsons, who were landed planters of modest means, the Quandos probably fell in the bottom rank of free society; they were probably tenants or renters who scratched together a meagre subsistance by growing tobacco and selling their labor on the open market. They did not use the courts as extensively as did the Johnsons.
The Savoys of Anne Arundel County were a family of free blacks contemporaries of the Quandos. We have already discussed Mingo Savoy's 1717 petition before the county justices on behalf of his two unnamed grandchildren. Savoy complained that the children's master was ignoring their indenture and treating them like they were slaves. We have also reviewed the freedom petition of Mingo's daughter, Judith, in 1741.[ 33 ] The surviving record on the Savoys makes it difficult to determine precisely the familial relationships between them. Mingo was Judith's father and Judith was the mother of Sarah Savoy. Sarah is the only Savoy specifically identied as Negro. Clearly, if Sarah was black, so was Judith. And Mingo's first name was a common name for black males. Mingo's two grandchildren were not Judith's children because internal evidence shows that they were probably older than Judith. We also find references to one, or possible two, individuals named Arthur Savoy in Prince George's and Charles County records. What, if any, relationship he, or they, had to the other Savoys is neither stated or implied. (Savoy is today a common surname among the tri-racial "We-Sort" of Prince George's and Charles Counties.)
Mingo's first known encounter with record keeping authorities was in 1705 when he was accused of buying items of clothing from a slave named Mingo who belonged to John Edwards. As we have seen, a statute of 1699 prohibited free people from dealing with slaves. Savoy's attorney got him an imparl and eventually acquittal and costs in a jury trial. Savoy subsequently entered suit to recover his costs.[ 34 ] Mingo next encountered the court system in 1708 when unspecified criminal charges against him were dropped.[ 35 ] Then, in 1717, he sought and received relief for his grandchildren in the case previously mentioned. Over the next two years, he was involved in a suit that is so poorly written as to be nearly indecipherable but appears to have concerned his failure to pay taxes.[ 36 ] Finally, in June of 1723, he recorded his daughter Judy's indenture to Humphrey Godman for a six year term. There is also a notation that he had satisfied a debt of 2,458 pounds of tobacco resulting from a suit he lost the previous court session (March, 1723, for which no records have survived).[ 37 ] There is no subsequent record of Mingo Savoy and his name does not appear in any surviving land or testamentary records.
The name Arthur Savoy appears sporadically in Anne Arundel, Prince George's, and Charles County records from 1735 to 1767. While there is no evidence of kinship between him and the other Savoys, he did get in trouble with the Anne Arundel Justices in 1746 "for not giving his Wife as a Taxable."[ 38 ] Since the only women subject to poll Taxes were slave women,[ 39 ] we may safely infer that Savoy was a black, or mulatto, married to a black or mulatto slave women who was not free. The earliest court record for Arthur Savoy is 1735 when a suit, probably criminal, was dropped.[ 40 ] The following year, a grand jury indicted him for stealing a cow. A jury acquitted him in 1737. A white man paid his fees.[ 41 ] In 1741, another jury found Savoy guilty of stealing a horse. His sentence was thirty-five lashes and repaying the owner four-fold the mare's assessed value of 800 pounds of tobacco.[ 42 ] In 1757, a man of the same name was charged with concealing two taxables in Prince George's County and, in 1767, an Arthur Savoy of Charles County was sued for a minor debt.[ 43 ] It is problematic whether these last two references are to the same Arthur Savoy. Either way, the name does not appear in land or testamentary records. The individual or individuals who bore the name appear not to have been possessed of much estate or community standing.
The Savoys were far more similar in circumstances to the Quandos, their contemporaries, than they were to the Johnsons of the previous century. Their names do not appear on land or testamentary records which suggests that they had the most modest of estates. While they appeared in court frequently to answer other people's complaints against them, they went into court on their own iniative only when someone threatened to make slaves of them. The court's treatment of them is no different than their treatment of poor but free whites. The Savoys, like the Quandos, show every indication of being in the lower rank of free society, a rank they shared with many whites, but a rank that had little to gain from the court system of provincial Maryland. The courts did not descriminate against them; society had already done so.
Besides the Johnson, Quando, and Savoy families, there were two free individuals, one black and the other mulatto, who appeared frequently in the courts of colonial Maryland, Free Jupiter and Robert Perle. C. Ashley Ellefson has shown the difficulties that Free Jupiter encountered in the courts over the issue of whom he, as a free man, would serve. His story began in 1691 when he became free by terms of his master's will and promptly indentured himself to John Courts of Charles County for seven years. When his term to Courts expired, he entered a five year indenture to John Contee, then another for seven years. In 1704, while in Contee's service, Jupiter was convicted in a jury trial of hog theft. He received thirty lashes and one half hour in the pillory. Contee had to repay four-fold the hog's value for a total of 600 pounds of tobacco. In return, the court awarded him an additional three month's service from Jupiter. Contee died before Jupiter's term of service expired and Jupiter continued in the service of Contee's widow, Mary. In 1710, Jupiter was presented again for hog theft but the grand jury failed to indict him. That same year, so Jupiter thought, his service to Mary Contee ended.
Jupiter's troubles in the matter of serving whom he chose began when he entered an indenture with Charles Jones of Charles County. Mary Contee, now married to Philemon Hemsley, still claimed service from Jupiter on grounds that are not made clear in the record. For the next six years, there was a barrage of suits and countersuits in the Charles County and Provincial Courts. Involved were the Hemsleys, Jupiter, and Jupiter's preferred master, Charles Jones, and, after Jones died, his widow, Jane. Jupiter, in his suits against the Hemsleys, consistantly won judgment, but the Hemsleys consistantly found legal means to stay execution of judgment. In 1715, Jupiter filed unspecified charges against his mistress, Jane Jones. The court ignored his petition and ordered him to remain in her service. In 1716, the matter with the Hemsleys finally came to a conclusion in Jupiter's favor. Though the Hemsleys by then owed him over 5000 pounds of tobacco in damages from the various suits he had won, Ellefson speculates that he never collected.
Although Jupiter ultimately prevailed, with the courts' help, in serving whom he chose, Ellefson said that the significance of the case lies in the extreme difficulty he had in achieving victory. Ellefson attributed this difficulty to racism and opines that Jupiter may have won only because some white people, the Jonses, had a vested interest in him winning.[ 44 ] But we have seem ample evidence in freedom suits, criminal proceedings, and civil suits brought by blacks against whites that the courts of colonial Maryland consistantly found for black plaintifs and black defendants when justice demanded regardless of any vested interest certain whites may have had. And no one familiar with colonial litigation can be surprised by a civil suit which dragged out for six years.
The real significance of Jupiter's saga is its similarity to cases involving other free blacks. Although he was a free man, Jupiter certainly was not a man of means. He had no estate and subsisted by serving others. Societal descrimination against him because of his color may account for his failure to rise any higher than he did. But there were many whites in colonial Maryland who never did any better. Whether society descriminated against him or not, the courts certainly did not. They dealt with Jupiter the same way they would have any propertiless free man.
Though Jupiter was free, his social status by no means approached that of the early Johnsons. By contrast, one eighteenth century free mulatto, Robert Perle, also called Mulatto Robin, of Prince George's County does appear to have achieved a place in society concommitant to that of the Johnsons. As a result, his use of the courts was more extensive than any of the other eighteenth century free blacks. We know that he was the son of a slave woman and had been manumitted by his master. He owned land, worked as an overseer of slaves, and was considered substantial enough a member of his community to be appointed overseer of the roads on at least one occasion. Like many of his white contemporaries, he used the courts frequently in civil suits.
The first record of Perle is in March, 1728, when he entered suit before the Prince George's Justices against Charles Drury claiming £50 sterling damages as a result of an assault he claimed Drury perpetrated upon him. His race immediately worked against him. The justices stated that, as the son of a slave women, manumitted or not, Perle was not legally competent to take an oath against a white man. They no doubt referred to the supplemental law of 1717 which prohibited Negroes, mulattoes, and Indians from giving evidence against whites.[ 45 ] Perle, therefore, was to "take nothing by his writ aforesaid but be in Mercy." Furthermore, the justices directed Drury to recover from Perle 970 pounds of tobacco for the cost of suit. Both men had attorneys. Drury later sued Perle for the costs due him and Perle paid.[ 46 ]
But the matter did not rest there. Perle was not satisfied to be told he could not testify against a white. He took his case to the Calvert County Court despite the fact that both he and Drury were residents of Prince George's and that the incident occurred in Prince George's. The record does not explain how Perle got this change of venue, but when the case came before the Calvert Justices, he had raised the damages to £200 sterling. The Calvert Justices recorded no objection to his case but granted Drury an imparl. They took the case up in January. Drury pleaded self defense and the justices ordered the case to be heard at the next session of the Provincial Court on assize. Provincial Court Justice John Smith presided over the assize session in Calvert County and heard the case in May, 1729. By this time, Perle had two lawyers and Drury three. The jury found for Perle and the court awarded him
£45 sterling plus cost of suit. Nothing was said in the assize record about Perle's legal ability to testify against a white. Perhaps he had white witnesses to testify for him, thought the record is not specific about witnesses. Drury requested and was granted an appeal.[ 47 ] The case of "Charles Drury v Robert Pearle alias Mallatoo Robin Appeale from Provincial Court" appeared on the July 11, 1729, docket of the Appeals Court.[ 48 ] Unfortunately, the Appeals Court records from late 1720 through 1748 are lost, so we do not know how the issue was resolved.
At approximately this same time, circa 1730, Perle's name appears on a tax list for Richard Warring's Quarter in Mattapany Hundred, which bordered Calvert County. Along with Perle, the list enumerates thirteen Negroes in a way strongly suggesting that Perle was a slave gang overseer.[ 49 ] Another civil suit which Perle initiated in 1728 offers further clues to how he earned a living. He filed in the Provincial Court against Peter Hoggins, administrator to Gunder Erickson, who died intestate. Perle sought 4246 pounds of tobacco or £28.5.0 current money for services he had rendered to Erickson. The record shows that Perle had built a small house, erected fences, repaired older buildings, sold foodstuffs, cared for livestock, and performed various other tasks on Erickson's behalf. The scope of work suggests that Perle may have actually been directing a labor force which performed the work. His suit was one of many against Erickson's estate and, in August, 1730, the Provincial Court awarded him full damages plus costs.[ 50 ]
Five years later, Perle was back in the Provincial Court suing Israel Folgate for 600 pounds of tobacco plus 500 pounds damages. Folgate was reported to have "Removed in a secret manner from the Place of his Abode," not doubt to avoid judgment. Perle apparently only intended to scare him into paying and withdrew his suit. But by the next session, Folgate was still delinquent so Perle refiled his suit. This time the Court ordered attachment of tobacco, livestock, and household goods belonging to Folgate valued at the full amount of 1100 pounds of tobacco. The justices gave Folgate one year to contest the attachment. This action brought Mr. Folgate to his senses and the last we hear of the matter is in the records of August Court, 1733, where it was noted that the case had been settled amicably, "Each party paying half Costs."[ 51 ] The following fall, Perle won an attachment on the goods of James Burton for one hogshead of tobacco valued at £4 sterling.[ 52 ]
In June of 1736, Perle initiated the first suit that he would lose. It was for 700 pounds of tobacco against the estate of James Greenfield. He won an attachment, but Greenfield's widow, Eleanor, successfully challenged Perle's claim and the Provincial Court awarded her 1915 pounds of tobacco costs. Perle contested the judgment and the case dragged on until the summer of 1739 when he finally lost owing Greenfield an additional 408 pounds of tobacco costs.[ 53 ] He was one of many people laying claims against the Greenfield estate. Later that year, Perle was one of four plaintifs in a case against "Smith et Uxor" which appeared twice on the Chancery Court docket but was never tried.[ 54 ]
In one of two final cases, Perle won an uncontested judgment for 2200 pounds of tobacco plus costs against George Nailer in 1743.[ 55 ] Three years later, Blanford Beaven entered suit against Perle for 16,000 pounds of tobacco plus interest on or before June 10, 1744. Beaven claimed that Perle had defaulted. The Provincial Court issued a writ ordering in the Prince George's sheriff to return an inventory of Perle's property which could be used to satisfy the debt. The sheriff listed only one thing in his return, a 188 acre tract of land called "Arches Pastures" worth 7000 pounds of tobacco. The writ was then struck off by injunction. The record is not clear as to who issued the injunction, but such actions often indicate that someone, in this case Perle, had gone to the Chancery Courty for remedy.[ 56 ] Unfortunately, there is no subsequent record of this case in either Chancerty or Provincial Court proceedings. While we cannot determine how this case was resolved, it does tell us two important things about Perle: he contracted sizeable debts and he owned land. Both observations bespeak a man of at least middling means, probably someone who was very similar in circumstances to the seventeenth century Johnsons.
The last glimpse we have of Robert Perle confirms this suspicion. It is a brief notation in Provincial Court records of 1748 indicating that he was being fined 500 pounds of tobacco for failing to oversee the highways. This was not an unusual offense for someone to be fined for. What is notable is the implication that Robert Perle was substantial enough a member of his community to have been appointed road overseer in the first place. The highways and water crossings act of 1704 required each county court to make a yearly inventory of its roads and to appoint road overseers as necessary to see that the roads were kept clear of obstacles, were well grubbed, and clearly marked. The overseers were also responsible for erecting and maintaining bridges and were empowered to summon freemen or their servants to perform whatever work they deemed necessary. The law provided fines for those freemen who refused to respond themselves or by sending servants. It also provided the 500 pounds of tobacco fine for overseers who did not discharge their duties.[ 57 ] Road overseers had to be, then, men of some social standing if they were expected to take on such responsibilities, especially the power to impress freemen and their servants. It could be argued that Perle's failure to do his job as overseer was the result of whites refusing to cooperate with a mulatto, but that agrument is quickly dismissed by pointing out that the county justices would not have appointed someone in whom they had no confidence because of his race. Also, such fines were sufficiently commonplace to indicate that road oversight was one of those civic responsibilities that many citizens found onerous enough to ignore despite the consequences.
Robert Perle stands out as an exceptional example of a non-white in the court system of eighteenth century Maryland. After overcoming an initial legal obstacle to his fitness to testify against whites reminiscent of John Johnson's overcoming a similar obstacle fifty years earlier, Perle went on to use two county courts, the Provincial Court and the Court of Chancery to recover debts. He also had creditors do the same against him. He owned land and performed what amounted to construction and odd-job contracting, possibly as a labor force boss. He may at one time have been an overseer of slaves and definitely was once appointed a road overseer. In short, he functioned as any white man of moderate means would have, insofar as we can tell. We cannot say whether he voted or served in the militia.[ 58 ] His name was not found on any jury lists. But his career certainly contrasts markedly to the lives of the Quandos, the Savoys, and Free Jupiter. No doubt he was an exceptional non-white who achieved a remarkable degree of assimilation into the planting society of which he was a part. The courts seem not to have discriminated against him (he won more civil suits than he lost), even though statutory law would have permitted them to do so. However, Perle must have been an unusually assertive and resourceful individual to overcome the stigma of race and achieve the status that he did.
There are other isolated cases of blacks or mulattoes suing whites and of whites suing them. In 1702, for example, we find "A Mallato" suing a "Coll Lowe" in Provincial Court. The case was continued and never heards.[ 59 ] The following year "Indian Tom alias Tom the Mulatto" sued William Bates, mariner, for a physical assault which Tom claimed injured him to the extent that "his life it was dispaired." The record reveals that Tom was legally a minor (not yet 21 years old). When the trial was held, Bates stepped forward to deny the charges, but the plaintif did not appear. The court dismissed the suit and awarded Bates 665 pounds of tobacco for Tom's "false Clamour."[ 60 ] An Eastern Shore black called Negro Phenix, planter, who had been found not guilty by a jury of fornication with a servant named Margery Johnson, entered a suit against Clement Sailes in 1719, but the case was never tried.[ 61 ] In 1743 the Anne Arundel justices summoned Thomas Wells, presumably a white, to testify for Mulatto Nanny in a suit against Sarah Holland.[ 62 ] That case, too, never came to trial. Twenty-two years after that, Isabella (Free Negro), also called Ez Sa Bello, Somerset's wife, successfully threatened Isaac Carter with a civil suit over £3.5.0 current money due on a promissory note.[ 63 ] Finally, in 1772, Hannah Lewis, a mulatto, lost a suit against Nathaniel Martin and had to pay his court fees.[ 64 ]
Two cases of whites suing non-whites have come to light. In 1740 James Russell sued Elizabeth Grimes, alias Mulatto Bess, but the matter was settled out of court. Grimes had earlier been convicted of bastardy. She was unable to pay her fine on the bastardy charge and suffered ten lashes.[ 65 ] Perhaps Russell was her master and his suit involved lost service due to her child bearing. In 1758 the executors of Daniel Bryants sued Sambo Tobin, who was not identified by race but must have been black, for recovery of a £7.09.0 current money as per a promissory note. Tobin lost and was assessed an additional 273 pounds of tobacco costs.[ 66 ]
These miscellaneous cases are conspicuous for their extreme rarity. Unless there were other blacks and mulattoes with English sounding names who were not identified racially in the court records, it appears that free blacks and mulattoes for the most part lived outside the legal mainstream of eighteenth century Maryland, that is, they occupied a level of free society (with many whites) that simply had little call to use the court system in civil suits. On those occasions when free blacks and mulattoes did use the courts, they were treated more like, than differently from, free whites.
Because the statutes of colonial Maryland did not recognize their existence, free blacks possessed an uneasy status. Society's attitudes no doubt played a leading role in preventing their rising socially the way whites could. The courts, however, do not seem to have had a direct hand in that process; they did not have to. Free non-whites for the most part were relegated to the bottom rung of free society. Their peer group, regardless of color, did not have much occasion to use the courts the way freeholders did. We may speculate also that their precarious status may have discouraged free non-whites from placing themselves in the spotlight of legal scrutiny lest they lose their freedom. But when they did use the courts, they were treated fairly.
Of the family groups and individuals we have discussed, the pre-1678 Johnsons show evidence of having been the most assimilated into white planting society. But they lived before the harsher aspects of race prejudice had become institutionalized in the statutes. The Quandos, Savoys, and Free Jupiter, on the other hand, lived when race attitudes were hardening on the official level. Their more limited use of the courts reflect their more limited social status. Robert Perle's exceptional career, which spanned the same period, shows that when a non-white was assertive enough to overcome society's attitudes, he could use the courts to the same extent, and with the same fair dispensation of justice, as free whites of modest means.
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